Legislature(2015 - 2016)BUTROVICH 205
03/07/2016 04:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB163 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 163 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
SB 163-NATL. RES. WATER NOMINATION/DESIGNATION
4:28:55 PM
CHAIR GIESSEL announced consideration of SB 163.
4:29:40 PM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), Anchorage, said SB 163 clarifies who can
designate a "Tier 3" water in Alaska. He said that there are
legal uncertainties whether the legislature has given this
authority to DEC. The bill also makes a clear policy choice
whether the legislature wants to have a say in the designation
of a Tier 3 water, which is important given the ramifications of
such a designation. Additionally, SB 163 provides a process for
the public to make nominations and for the legislature to act on
nominations.
4:30:48 PM
MR. HARTIG said [subsections] (b)-(e) in section 1 of the bill
provide a process where DEC would gather nominations and
supporting information and periodically transmit them to the
legislature. The legislature can take a nomination and act on it
in the form of a bill, or it can ask agencies for a detailed
report evaluating the pros and cons of the nomination. "That
isn't spelled out in the bill itself, but certainly that's
something that would be within the prerogative of the
legislature to do," he explained.
4:31:12 PM
MR. HARTIG said the legislature can choose not to designate "a
Tier 3 or Outstanding [National] Resource Water-those terms are
synonymous," and it has a whole host of other options available.
The legislature could protect an area by putting it into a state
park or refuge, for example. He asked why the legislature should
make the determination on Tier 3 waters and answered that a Tier
3 water is the highest level of protection under the Clean Water
Act (CWA). The designation protects water from future pollution,
including waters used for drinking, aquatic life, and
recreation. The stream, he said, will be conserved in its
existing state, regardless of the pros and cons of adding
discharged pollutants. "So it has some large consequences when
it's designated," he noted, and it will preclude "other
dischargers" from new pollution, including pollutants from
processing plants and mining.
4:33:15 PM
MR. HARTIG said federal requirements for a designation of an
Outstanding [National] Resource Water (ONRW) include outstanding
quality or purity, as well as exceptional recreational and
ecological significance. He said DEC would not look at those
[latter] factors when regulating water quality, which "sounds
more like a game refuge or a state park," and it would not be
within its purview. Water quality and purity "sounds more like
DEC and water quality standards that we adopt and implement,"
but quality and purity describe all of the water in the state.
New Jersey's outstanding water might be water that is not
polluted, he said, but [unpolluted water] is ordinary in Alaska.
A Tier 3 designation will depend on what additional factors in
Alaska make water outstanding, he stated. "Do you make a
conscious policy decision that we're just going have a lot of
Tier 3 ONRW waters in Alaska, because we have a lot of special
waters here?" He told the committee that there is no provision
under federal law for "unwinding" a Tier 3 designation, so the
designations could be for perpetuity. It will keep the water
outstanding and there would be no logical reason to "reverse
course," he stated. When looking at a nomination, the
legislature has the tools for protecting such waters, but not in
perpetuity, so it can carve out another mechanism, like creating
parks or refuges. However, DEC would designate the water as
"Tier 3 or not." He said that by putting it all together, "we"
think it is more appropriate for the legislature to be the
decision maker. This bill has been put forward because "we need
to go forward and designate to EPA [Environmental Protection
Agency] what our process is for designating Tier 3 waters,"
which is a requirement of the Clean Water Act and EPA
regulation. If this is not done, there is the risk of EPA or a
court "forcing us to do it" or providing a federal process for
designating Tier 3 water," he explained.
4:37:42 PM
CHAIR GIESSEL noted a March 22, 2016, letter from Mr. Hartig
responding to committee member questions, and she expressed
appreciation on how well the letter was done. Senator Coghill
had said there should be a process for reversing a designation,
and she referred to the following statement from Mr. Hartig's
letter:
There is no federal regulation or guidance specifically
addressing whether or how a state's designation of an
ONRW can be reversed or modified. DEC knows of no ONRWs
in the United States that have had their designation
reversed. It is assumed that the justification necessary
would be extensive; however, the proposed removal of an
ONRW designation would presumably be similar to the
process used to originally designate the ONRW, here, in
the legislative process.
CHAIR GIESSEL asked where Mr. Hartig got the above information
on rescinding a designation.
COMMISSIONER HARTIG said it is an area of confusion, because no
provision in the EPA regulations or in the Clean Water Act
addresses this. He said he is not aware of any state that has
tried to reverse protections. He said his take is that if DEC
designated a Tier 3 water based on water quality, purity, and
recreational and ecological values, it would be through a
regulatory process. He does not see how DEC could come back and
say it made a mistake unless an extraordinary event occurred,
like a volcanic mud flow. He added that it would be difficult to
prove that DEC made a wrong decision after considerable process
and review.
4:41:51 PM
COMMISSIONER HARTIG said he does not know if there would be more
room to reverse a designation legislatively, because the body
could, perhaps, look at other factors and considerations, but no
other state has tried it. He noted that the statements in his
letter came from the Department of Law, and it might be that the
legislature could rescind a designation with a bill, but he said
he did not know if that would be legal.
CHAIR GIESSEL said that this committee knows that the state has
had minimal mapping and is still discovering new resources to
develop. She said she could envision a situation where there is
a desire to develop a resource upriver from a waterbody that had
been designated Tier 3, and "we" would want to "undeclare" the
Tier 3 designation.
4:43:00 PM
COMMISSIONER HARTIG said if the legislature did not want a
perpetual Tier 3 determination, it could craft whatever solution
it wanted to protect the nominated water without risking [future
development options].
CHRIS PELOSO, Assistant Attorney General, Department of Law
(DOL), Juneau, said that he does not believe that the EPA has
contemplated removing a [Tier 3] designation, so there is
nothing in the Clean Water Act about it. He opined that the
designations were designed to be permanent, like a national
forest or park. If the legislature were to put in statute that
designations could be removed under certain conditions, "we
would have to take that back to EPA and see what they said about
it." He said the EPA may provide comments or may find it
acceptable, but no state has gone through that process, so it is
impossible to know whether that would work.
SENATOR COGHILL said, "I would like to suggest to EPA that they
contemplate it," but he understands that there should be fairly
compelling reasons to reverse a designation. He stated that the
legislature would do the same if it created a state park and
then carved out a part of it for some reason. He asked if the
EPA has a preemptive right.
MR. PELOSO answered that the EPA has some approval authority
over certain things that the state does, and Alaska's Tier 3
process would go to the EPA. But since there is nothing in the
regulations about how to reverse a designation, "I don't believe
that EPA has a process of how they would do that." He said the
state would have to talk to the people in Region 9 of the EPA,
"and see what their general feelings on this are." He added that
EPA may have to do some rulemaking.
4:46:40 PM
SENATOR COSTELLO pointed to line 2, page 2, of SB 163 whereby
"the commissioner shall transmit [a list of nominations] to the
legislature for consideration." That implies some action of some
sort, she stated. Generally a report is provided to the
legislature, but the bill takes it a step further, and she asked
if there has to be some action taken. Secondly, it seems that
every year the same waters could be proposed and transmitted for
consideration, and, over a period of decades, "you would build
this body of political movement to designate some of these
waters, when, in fact, once the legislature considers them, it
seems like they should be taken off the list and not allowed to
be put back on the list for a period of time, perhaps a decade
or something."
MR. PELOSO said DEC does not have the authority to force the
legislature to do anything, so when it proposes something for
consideration, the legislature can choose not to act on it. He
said he can amend the language to make that clearer. Regarding
nominations that are not approved or deliberated, he said,
taking [those waters] off "the list" could be handled through
regulation. "I don't suspect it would necessarily be a problem
to work out a process for how nominations that were not
considered are dealt with," he stated.
4:49:24 PM
ED FOGELS, Deputy Commissioner, Department of Natural Resources
(DNR), Juneau, said DNR has worked with DEC on SB 163, and he
absolutely agrees that this is an issue that needs to be solved.
The state has to have its own process or EPA will create one, he
noted. He said a Tier 3 designation could have significant
impacts on land and water uses that DNR authorizes both within
and upstream of the proposed Tier 3 areas. The fiscal note shows
that DNR permitting could be complicated by a Tier 3
designation, and it may be more difficult or impossible to
permit land uses, like point source discharges, that impact the
quality of Alaska's Tier 3 waters. Uses may not even be allowed,
so people may not be applying or looking in those areas to do
any of those kinds of uses. He said he is not sure how much
additional work an analysis would take, but he is sure there
will be additional workload if DNR was faced with issuing "these
authorizations" within or upstream of a Tier 3 designation. He
said DNR recognizes the potentially significant restrictions on
land and water uses within a Tier 3 area, which will be similar
to those on state parks, wildlife refuges, and other special
areas; therefore, the legislature should make these decisions.
4:52:10 PM
SENATOR COGHILL asked about flowing water and "up shore," and he
said there would be a permitting problem for DNR. He asked about
land next to a standing water body and about permitting
recreational cabins near water. He asked what other land
management near a waterbody is going to be impacted.
MR. FOGELS answered that there are some unknowns, but most mines
have a point discharge that would require a DEC permit, and
mines near Tier 3 standing waters would likely not get a permit.
A person who wanted to apply for a lodge with a waste water
disposal system near a lake or a standing body of water, "that
would likely, in our view, be 'unpermitable'." If DNR had to
authorize water removal from a lake, it would depend on how it
would impact the quality of the water. It would all be part of
the analysis, he stated.
SENATOR COGHILL asked about taking water for fire suppression,
and he stressed being very careful about designations. It would
be a real barrier if DNR had to ask DEC [to use Tier 3 water].
MR. FOGELS said he will get back to the committee on using
designated waters for fire suppression.
4:55:23 PM
SENATOR STOLTZE asked for examples of medicinal and mineral
waters, and if they will be impacted by [Tier 3] designations.
MR. FOGELS said there are mineral springs that may be used for
medicinal purposes. Alaska has a lot of hot springs, but he does
not know if there are designated medicinal waters.
CHAIR GIESSEL said there is a hot springs in the Fairbanks area
that touts having medicinal waters.
SENATOR STOLTZE said fire suppression is a DNR activity, and the
Governor's letter has no reference to DNR being involved. Should
DNR have a more formalized role in the ONRW process?
MR. FOGELS said DNR has been working on SB 163. There is a
question as to what role the resource agencies should have. The
agencies can provide a list of nominated waters to the
legislature, or the legislature can deliberate and then ask for
input from the agencies. He hopes that he can come before the
legislature to clearly explain the economic ramifications of
protecting water under Tier 3 designations. He pointed out that
an agency process can encounter "frontloading," and it can be
pretty significant and decisions can be challenged or appealed.
SENATOR STOLTZE said that the United Fishermen of Alaska (UFA)
has a different priority and does not want legislative
involvement, and it certainly has a record of not supporting a
lot of mining and other activities, including tourism. "They
have a death grip on one of our departments, and I'd sure hate
to have them have a death grip on several others if there's
another process they're suggesting." He said there are people on
the committee who have a few months remaining in their
legislative terms, and he sure would like to see DNR's process
and involvement formalized, because the "cadre of folks" at DEC
do not have the same type of enthusiasm for the constitutional
charge of DNR. He added that DEC has a different interpretation
of Article XIII than he thinks the founders did, and DEC is
closer to the mission of the fishermen than the mission of DNR.
He stated that DNR should be elbowing its way into this
discussion, and "you should be more forcefully shoving your way
into this if you're following your constitutional mission."
5:01:09 PM
CHAIR GIESSEL said that is the very reason that the committee
has DNR present today. She asked about "the role of Canadian
waters." Many of Alaska's rivers start in Canada, she said, so
"how's that going to work?"
MR. FOGELS said that is a good question, and DNR is having
discussions with Canada regarding resource development over the
border from Southeast Alaska. But Tier 3 designation is US law,
and he does not believe there is any direct legal recourse if a
water was [impacted] if "something happened on the other side."
That would be beyond the authority and expertise of DNR, he
explained.
SENATOR COSTELLO asked if Alaska can be exempt from the law,
considering how important resource development is to the
economy.
MR. FOGELS said he is experienced with the Clean Water Act and
finds it highly unlikely that Alaska can be exempt, but the
state might be able to "push back" on certain aspects and see
how EPA responds. "I'm totally behind looking at avenues that we
could do something like that-test the waters a little bit, so to
speak."
5:03:28 PM
MICHELLE HALE, Director, Division of Water, Department of
Environmental Conservation (DEC), Juneau, said the requirements
for the antidegradation process have been clearly spelled out in
federal regulations since 1983, and it is in the Clean Water Act
revision of 1987. The antidegradation process includes a Tier 3
nomination and designation process, and "in our experience we
would not be able avoid that requirement." The requirement is
just to have the process, and there is no requirement to make
designations, she added.
CHAIR GIESSEL said that is a key point; "this is about a
designation process, not that it would necessarily be used."
MS. HALE said yes. Many states have processes and have never
used them, she explained, but if Alaska does not create a
process, it faces two risks: the EPA will come in and create a
process, "and it may not be the process that we want," and the
second risk is litigation. "We have been sued about our ... lack
of antidegradation implementation procedures, which includes the
Tier 3 nomination and designation process." She said she would
like to not be sued again, but that risk is there.
5:05:30 PM
SENATOR STOLTZE asked if Alaska is really in charge of the
process. "If the feds tell us we can drive, but we're going to
have a gun stuck in our ribs during the whole driving route,
which is in perpetuity ...." He asked if Governor Walker's
administration has confidence in the federal government "that
many of us don't have."
COMMISSIONER HARTIG said it is a requirement that each state
have a process to consider nominations of Tier 3 waters, but EPA
has made it clear in its guidance that it will not compel a
state to designate any particular water. That will be up to the
states, he explained, but states just have to have a process.
That is shown by the past decades, because some states have no
Tier 3 waters. Washington and Oregon have none, and California
only has two, he noted. Tier 3 status is a big consideration,
and EPA has not tried to force them on the states. His said his
one concern is that a member of the public will attempt to force
action on a nomination. If the legislature says DEC has the
authority to designate Tier 3 waters, and if a nomination came
in and DEC did not act on it, Mr. Hartig could see somebody
asking for a court order for the agency to take official action
since it will be within its duties. Whereas, if the legislature
has the authority, then there will be legislative prerogative,
"and I don't see it very likely that a judge would come in and
try to force the legislature to take up a bill."
5:08:02 PM
SENATOR STOLTZE said it sounds like citizens can get organized,
and they can get "somebody who used to be a U.S. senator to get
the federal government to bring in the feds, and we don't know
how to get them out." He said that is a question directed to the
commissioner or the highest ranking DNR person.
COMMISSIONER HARTIG said he does not see a great risk that EPA
would try to force the legislature to act on or even consider a
bill for a Tier 3 designation. He said he has never seen an
action like that in any state under the Clean Water Act. He said
he sometimes questions whether the EPA has the authority to do
some of the things it does, but based on 40 years of experience
working on the CWA he has never seen something like that.
SENATOR WIELECHOWSKI said he appreciates the input provided by
industry, and unfortunately, in a resource development state,
sometimes there is conflict between fish and mining. It does not
help to demonize a group, and he said he appreciates the letters
that were provided by both organizations. The letters were well
thought out, he said, and they were both advocating strongly for
their interests. The United Fishermen of Alaska provided well-
reasoned testimony, and, he said, it has been actively involved
in the regulatory process. The UFA is trying to protect fish,
and the miners are trying to protect the mines-"I don't think it
helps us to demonize anyone."
5:11:39 PM
CHAIR GIESSEL said she appreciated DNR's presence, and she noted
that there are letters from UFA, Yakutat Tlingit Tribe, Alaska
Miners Association, and others, which will all be posted online.
She said the committee will take public testimony on Friday or
Monday. [SB 163 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB163 ver A.PDF |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163 Sponsor Statement.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB 163 Supporting Documents - Transmittal Letter to Senator Meyer 1.28.2016.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163 Fiscal Note DEC-WQ-12-30-15.PDF |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163 Fiscal Note-DNR-MLR-02-15-2016.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163 Supporting Document - FAQs.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163-Comments-Alaska Miners Association.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163-DEC Responses to Questions in SRES.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163-Comments-Yakutat Tlingit Tribe.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163-Comments-United Fishermen of Alaska.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |
| SB163 Supporting Document - Tier Descriptions-DEC.pdf |
SRES 3/7/2016 4:30:00 PM |
SB 163 |